Citation Nr: 0407452
Decision Date: 03/23/04 Archive Date: 04/01/04
DOCKET NO. 00-18 832 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office
in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased evaluation for the residuals of a
fracture of the left humerus, currently rated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
Patrick J. Costello, Counsel
INTRODUCTION
The appellant served on active duty from October 1952 to July
1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in San Juan, the Commonwealth of Puerto Rico. As a
result of this action, this appeal is remanded to the RO via
the Appeals Management Center (AMC), in Washington, D.C. VA
will notify the appellant if further action is required on
his part.
REMAND
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) [38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003)] was enacted.
This law eliminated the concept of a well-grounded claim,
redefined the obligations of VA with respect to the duty to
assist, and imposed on VA certain notification requirements.
VA has a duty to notify the appellant of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R.
§ 3.159(b) (2003). See Quartuccio v. Principi, 16 Vet. App.
183 (2002) (holding that both the statute, 38 U.S.C.
§ 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly
require the Secretary to notify a claimant which evidence, if
any, will be obtained by the claimant and which evidence, if
any, will be retrieved by the Secretary). VA also has a duty
to assist the appellant in obtaining evidence necessary to
substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38
C.F.R. § 3.159(c) (2003).
Furthermore, the VA has a duty to assist the appellant in
obtaining evidence necessary to substantiate the claims,
although the ultimate responsibility for furnishing evidence
rests with the appellant. See 38 U.S.C.A. § 5103A (West
2002); 66 Fed. Reg. 46,620, 45,630 (Aug. 29, 2001) (codified
as amended at 38 C.F.R. § 3.159(c)). In the present case,
the Board finds that the VA's redefined duties to notify and
assist a claimant, as set forth in the VCAA have not been
fulfilled regarding the issues on appeal. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16
Vet. App. 370 (2002).
Specifically, after the veteran filed his notice of
disagreement, the RO issued a statement of the case (SOC).
After additional evidence was obtained and/or development,
supplemental statements of the case (SSOC) were issued.
Moreover, in May 2002, the RO issued a VCAA letter. A review
of these documents does not show that the appellant was
notified of the evidence he needed to supply to prevail on
his claim and what the VA would do in order to assist him
with his claim. An examination of the May 2002 VCAA letter
reveals that the veteran was notified what he needed to do in
order to have service connection awarded for a left humerus
disability instead of being told what he needed to accomplish
in order to have a rating in excess of 10 percent assigned.
In essence, the RO sent the wrong type of information to the
veteran pertaining to his claim. Additionally, the latest
two SSOCs, which were issued after the implementation of the
VCAA, note the regulations used to decide the veteran's
claim. They do not, however, specify the type of evidence
needed by the veteran in order to prevail on appeal.
Accordingly, the Board finds that VA has not satisfied its
duty under the VCAA to notify and assist the appellant with
regards to his claim.
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the VCAA.
In addition, because the RO has not yet considered whether
any additional notification or development action is required
under the VCAA, it would be potentially prejudicial to the
appellant if the Board were to proceed to issue a decision at
this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA
O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57
Fed. Reg. 49,747 (1992)).
Notwithstanding the above deficits, a review of the claims
file reveals that in August 2003 the veteran submitted VA
Form 21-4142, Authorization and Consent to Release
Information to the Department of Veterans Affairs (VA). This
document was submitted in response to an inquiry by the RO as
to where he had received treatment for his disabilities. On
that form, the veteran noted that he had received treatment
from Grupo Medico Emmanuel, Dr. Carlos A. Ceperd Ayende, and
Dr. Luis A. Escabi. Although it appears that the records
from Dr. Escabi have been obtained, the other records have
not been requested or obtained by the VA. Because of the
change in the law brought about by the VCAA, a remand in this
case is required for compliance with the duty to assist
provisions contained in the VCAA. Specifically, since the RO
has been given notice of the additional records, and since
they may have some bearing on the veteran's claim, the RO
must attempt to obtain those records. Moreover, if the RO is
unable to obtain those records, the veteran must be given
notice of the VA's failure so that the veteran may seek out
those records for submission.
Additionally, the record further reflects that the veteran
underwent a VA Joints Examination in August 2003 in order to
determine the severity of his service-connected left humerus
residuals. In his write-up, the examiner admitted that he
did not have a claims folder available for review prior to
the examination. Moreover, the examiner did not comment as
to whether he had reviewed the veteran's separate medical
folder. In Green v. Derwinski, 1 Vet. App. 121 (1991), the
United States Court of Appeals for Veterans Claims (the
Court) wrote that the fulfillment of the statutory duty to
assist "includes the conduct of a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one". The examination was not accomplished pursuant to the
directions given in Green, it did not take into account the
veteran's medical history, and therefore the claim must be
remanded to the RO and another medical examination
accomplished.
Therefore, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claim and
to ensure full compliance with due process requirements, the
case is REMANDED to the RO for the following development:
1. The RO should ensure compliance with
the duty to assist, documentation and
notification requirements set forth by
the VCAA, specifically including all
provisions under 38 U.S.C.A. §§ 5102,
5103, 5103A (West 2002); 38 C.F.R. §
3.102, 3.156(a), 3.159 and 3.326(a)
(2003); and the holdings in Quartuccio v.
Principi, 16 Vet. App. 183 (2002) and
Charles v. Principi, 16 Vet. App. 370
(2002). The claims file must include
documentation that the RO has complied
with the VA's redefined duties to notify
and assist a claimant as set forth in the
VCAA and relevant case law as
specifically affecting the issue on
appeal.
2. The RO should contact the veteran and
ask that he identify all sources of
medical treatment since January 2003, and
to furnish signed authorizations for
release to the VA of private medical
records in connection with each non-VA
source identified. Copies of the medical
records from all sources, including VA
records, (not already in the claims
folder) should then be requested.
The RO should specifically attempt to
obtain the veteran's treatment records
from Grupo Medico Emmanuel [Barrio
Quebradillas, Carr 152, Room 8.1,
Barranquitas, the Commonwealth of Puerto
Rico 00794] and Doctor Carlos A. Ceperd
Ayende [Box 1326, Aibonito, the
Commonwealth of Puerto Rico 00705]. All
records obtained should be added to the
claims folder.
If requests for any private or non-VA
government treatment records are not
successful, the RO should inform the
veteran of the non-response so that he
will have an opportunity to obtain and
submit the records himself, in keeping
with his responsibility to submit
evidence in support of his claim. 38
C.F.R. § 3.159 (2003).
3. Following completion of the above
development, the veteran should be
afforded an examination, by an
appropriate specialist, in order to
determine the nature and extent of his
current left humerus fracture residuals.
The examiner should be provided with the
veteran's claims folder and a copy of
this Remand and should review the
veteran's medical history prior to
conducting the examination. In addition
to x-rays, any other tests and studies
deemed necessary should be accomplished
at this time.
The examiner should specifically comment
on any manifestations and symptoms
produced by the service-connected
disability. Readings should be obtained
concerning the veteran's range of motion
and any limitation of function of the
parts affected by limitation of motion.
The examiner should also be asked to
include the normal ranges of motion.
Additionally, the examiner should be
requested to determine whether the
disability exhibits weakened movement,
excess fatigability, or incoordination,
and, if feasible, these determinations
should be expressed in terms of the
degree of additional range of motion lost
or favorable or unfavorable ankylosis due
to any weakened movement, excess
fatigability, or incoordination. The
doctor should also be asked to express an
opinion as to the degree to which pain
could significantly limit functional
ability during flare-ups or on use. A
complete rationale for all opinions
should be provided. Any report prepared
should be typed.
The RO should specifically inform the
veteran that a failure to report for the
examinations may result in an adverse
action against his claim.
4. Following completion of the
foregoing, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination reports. If the examination
reports do not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, the reports must be returned
for corrective action. 38 C.F.R. § 4.2
(2003) (". . . if the [examination]
report does not contain sufficient
detail, it is incumbent upon the rating
board to return the report as inadequate
for evaluation purposes."). Green v.
Derwinski, 1 Vet. App. 121, 124 (1991);
Abernathy v. Principi, 3 Vet. App. 461,
464 (1992); and, Ardison v. Brown, 6 Vet.
App. 405, 407 (1994); see also Stegall v.
West, 11 Vet. App. 268 (1998).
Thereafter, the RO should readjudicate the claim. If the
benefits sought on appeal remain denied, the appellant should
be provided a supplemental statement of the case (SSOC). The
SSOC should contain notice of all relevant actions taken on
the claims for benefits since the last adjudication, to
include a summary of the evidence and applicable law and
regulations considered pertinent to the issue currently on
appeal. An appropriate period of time should be allowed for
response. Thereafter, the case should be returned to the
Board, if in order. The Board intimates no opinion as to the
ultimate outcome of this case. The appellant need take no
action unless otherwise notified.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both), which may be
dispositive of the appeal. Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2003)
failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).